B-142119, JUNE 16, 1960, 39 COMP. GEN. 844

B-142119, JUNE 16, 1960, 39 COMP. GEN. 844

MILITARY PERSONNEL - SERVICE CREDITS - TIME LOST DUE TO MISCONDUCT TIME LOST BY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES BY REASON OF SICKNESS DUE TO MISCONDUCT ( SKMC TIME) WHICH WAS REQUIRED BY THE ACT OF AUGUST 29, 1916, TO BE MADE GOOD AND WHICH IS NOT CREDITABLE FOR BASIC PAY PURPOSES, MAY NOT BE REGARDED AS SERVICE "WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY" UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, FOR CREDIT IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR FOR COMPUTATION OF RETAINER AND RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THE ACT. SINCE PERIODS OF CONSTRUCTIVE SERVICE RESULTING FROM MINORITY AND SHORT- TERM ENLISTMENTS, AS AUTHORIZED UNDER SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, AND SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, ARE FICTITIOUS AND REPRESENT PERIODS DURING WHICH THE MEMBER WAS NOT IN THE NAVAL SERVICE, SUCH CONSTRUCTIVE SERVICE IS NOT CONSIDERED "ACTIVE SERVICE" AS DEFINED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 TO BE CREDITED IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR FOR USE IN THE COMPUTATION OF RETAINER AND RETIRED PAY UNDER METHOD (B) OF SECTION 511 FOR A MEMBER OF THE FLEET RESERVE.

TO A CLAIMANT, JUNE 16, 1960:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1960, FORWARDED HERE BY THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING REVIEW OF THE ACTION TAKEN IN CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, SETTLEMENT DATED AUGUST 10, 1959, ON YOUR CLAIM FOR INCREASED RETAINER AND RETIRED PAY.

WHEN TRANSFERRED TO THE FLEET RESERVE ON APRIL 26, 1949, YOU WERE CREDITED, PURSUANT TO THE CONCLUSIVE DETERMINATION OF THE SECRETARY OF THE NAVY MADE UNDER AUTHORITY OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854A, 1946 USED., WITH A TOTAL OF 21 YEARS, 7 MONTHS AND 25 DAYS' SERVICE FOR TRANSFER PURPOSES. UNDER SECTION 204, AS AMENDED, OF THE SAME ACT, 34 U.S.C. 854C, 1946 USED., 55 PERCENT (21 YEARS, 7 MONTHS AND 25 DAYS AS 22 YEARS TIMES TWO AND ONE-HALF PERCENT) OF THE MONTHLY ACTIVE DUTY PAY OF ENLISTED PAY GRADE ONE WITH OVER 21 BUT NOT OVER 24 YEARS OF SERVICE CREDITABLE FOR PAY PURPOSES. EFFECTIVE FROM OCTOBER 1, 1949, AND BASED ON THE SAME LENGTH OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES YOUR RETAINER, AND SUBSEQUENTLY YOUR RETIRED PAY, WERE COMPUTED UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, AT THE RATE OF 55 PERCENT OF THE MONTHLY BASIC PAY OF ENLISTED PAY GRADE E-7 WITH OVER 18, BUT NOT OVER 22 YEARS' SERVICE CREDITABLE FOR PAY PURPOSES, PLUS ALL PERCENTAGE INCREASES THEREIN AS THEREAFTER PROVIDED BY LAW.

UNDER THE RULE OF THE WHITE CASE ( SHAIL FREDERICK WHITE V. UNITED STATES, 121 C.1CLS. 1, DECIDED JUNE 5, 1951) AND THE HOLDING IN OUR DECISION OF AUGUST 5, 1958, 38 COMP. GEN. 110, YOU WERE ENTITLED UNDER SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, TO COUNT YOUR MINORITY ENLISTMENT OF AUGUST 27, 1927 "AS FOUR YEARS' SERVICE" AND YOUR "SHORT TERM" ENLISTMENTS WHICH TERMINATED ON JULY 22, 1936, AND JULY 9, 1947,"AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED.' THESE PERIODS OF CONSTRUCTIVE SERVICE AGGREGATE ONE YEAR, ONE MONTH AND 28 DAYS WHICH, WHEN ADDED TO THE 21 YEARS, 7 MONTHS AND 25 DAYS THAT YOU WERE CREDITED AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE, MAKE A TOTAL OF 22 YEARS, 9 MONTHS AND 23 DAYS' SERVICE CREDITABLE UNDER SECTION 204 OF THE 1938 LAWS, AS AMENDED, IN THE COMPUTATION OF YOUR RETAINER PAY EFFECTIVE FROM APRIL 26, 1949. CONSEQUENTLY, IN THE SETTLEMENT OF AUGUST 10, 1959, ADDITIONAL RETAINER PAY IN THE AMOUNT OF $24.14 WAS CERTIFIED TO BE DUE YOU FOR THE PERIOD FROM MAY 21 TO SEPTEMBER 30, 1949, INCLUSIVE, COMPUTED ON THE BASIS OF 57 1/2 PERCENT (22 YEARS, 9 MONTHS AND 23 DAYS AS 23 YEARS TIMES TWO AND ONE-HALF PERCENT) OF THE MONTHLY ACTIVE DUTY PAY OF ENLISTED PAY GRADE ONE WITH OVER 21 BUT NOT OVER 24 YEARS' SERVICE CREDITABLE FOR PAY PURPOSES.

HOWEVER, THE AMOUNT OF $24.14 CERTIFIED TO BE DUE YOU AS ADDITIONAL RETAINER PAY (COVERING THAT PART OF THE PERIOD PRECEDING OCTOBER 1, 1949, WHICH IS NOT BARRED BY THE PROVISIONS OF 31 U.S.C. 71A), WAS APPLIED IN THE SETTLEMENT OF AUGUST 10, 1959, IN PARTIAL LIQUIDATION OF THE OVERPAYMENT THAT WAS REPORTED BY THE NAVY FINANCE CENTER, CLEVELAND, OHIO, IN LETTER DATED JULY 14, 1959, AS HAVING BEEN MADE IN YOUR RETAINER AND RETIRED PAY ACCOUNT DURING THE PERIOD FROM OCTOBER 1, 1949, TO JUNE 30, 1959, INCLUSIVE. IN THAT CONNECTION, THE CLAIMS DIVISION WAS ADVISED BY THE NAVY FINANCE CENTER THAT PRIOR TO THE RECEIPT THERE OF THE CORRECTED STATEMENT OF YOUR NAVAL SERVICE AS SET FORTH IN CHIEF OF NAVAL PERSONNEL LETTER DATED JUNE 9, 1959, IT WAS NOT KNOWN THAT DURING YOUR ENLISTED SERVICE YOU HAD BEEN ABSENT 2 MONTHS AND 27 DAYS DUE TO " SKMO.' THE NAVY FINANCE CENTER, CLEVELAND, OHIO, FURTHER ADVISED CLAIMS DIVISION THAT YOU WERE OVERPAID IN THE AMOUNT OF $838.94 RESULTING FROM THE FACT THAT YOUR RETAINER AND RETIRED PAY HAD BEEN COMPUTED UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, ON A MULTIPLE FACTOR OF 55 PERCENT (21 YEARS, 7 MONTHS AND 25 DAYS AS 22 YEARS TIMES TWO AND ONE-HALF PERCENT), WHEREAS, IN VIEW OF THE HOLDING IN OUR DECISION OF MARCH 24, 1959, B-138416, THE OPINION WAS EXPRESSED THAT THE COMPUTATION OF YOUR RETAINER AND RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, SHOULD HAVE BEEN BASED ON A MULTIPLE FACTOR OF 52 1/2 PERCENT (21 YEARS, 7 MONTHS AND 25 DAYS LESS 2 MONTHS AND 27 DAYS " SKMO" OR 21 YEARS, 4 MONTHS AND 28 DAYS AS 21 YEARS TIMES TWO AND ONE-HALF PERCENT). AS PREVIOUSLY STATED, THE AMOUNT OF ADDITIONAL RETAINER PAY FOUND DUE YOU FOR THE PERIOD FROM MAY 21 TO SEPTEMBER 30, 1949, INCLUSIVE, WAS APPLIED IN THE SETTLEMENT OF AUGUST 10, 1959, IN PARTIAL LIQUIDATION OF THE OVERPAYMENT MADE TO YOU DURING THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1959, INCLUSIVE.

THE ASSISTANT SECRETARY OF THE NAVY IN HIS TRANSMITTAL LETTER OF FEBRUARY 24, 1960, EXPRESSES THE VIEW THAT, SINCE THE STATEMENT OF YOUR NAVAL SERVICE AS SET FORTH IN CHIEF OF NAVAL PERSONNEL LETTER DATED JUNE 9, 1959, IS NOT A CORRECTION OF YOUR NAVAL SERVICE AS AUTHORIZED BY 10 U.S.C. 6332, YOU ARE NOT TO BE PENALIZED, BECAUSE OF YOUR ABSENCES DUE TO " SKMC," IN THE COMPUTATION OF YOUR RETAINER AND RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, EFFECTIVE FROM OCTOBER 1, 1949. IN PERTINENT PART THE ASSISTANT SECRETARY OF THE NAVY STATES HAT:

WHERE TIME LOST BY REASON OF SICKNESS DUE TO MISCONDUCT HAS BEEN PROPERLY CREDITED IN ACCORDANCE WITH REGULATIONS IN EFFECT AT THE TIME OF A MEMBER'S TRANSFER TO THE FLEET RESERVE AND THE ORIGINAL TRANSFER AND COMPUTATION WERE MADE IN GOOD FAITH I DO NOT CONTEMPLATE MAKING A CORRECTION UNDER THE DISCRETIONARY AUTHORITY OF 10 U.S.C. 6332 WHICH WOULD PREJUDICE THE MEMBER IN THIS OR ANY OTHER CASE AND CAUSE A RETROACTIVE CHECK AGE OF PAY OR A REDUCTION IN THE RETAINER OR RETIRED PAY HE HAS BEEN RECEIVING.

IN VIEW OF THIS POSITIVE DECLARATION IT NECESSARILY FOLLOWS THAT THE CORRECTED STATEMENT OF YOUR NAVAL SERVICE AS SET FORTH IN CHIEF OF NAVAL PERSONNEL LETTER DATED JUNE 9, 1959, MAY NOT BE CONSIDERED AS CONSTITUTING A CONCLUSIVE CORRECTION OF YOUR NAVAL SERVICE WITHIN THE PURVIEW OF THE PROVISIONS OF 10 U.S.C. 6332. HOWEVER, NOTWITHSTANDING THE ABSENCE OF SUCH CONCLUSIVE A ACTION UNDER 10 U.S.C. 6332, YOU ARE NEVERTHELESS ENTITLED FOR THAT PART OF THE PERIOD PRECEDING OCTOBER 1, 1949, WHICH IS NOT BARRED BY THE PROVISIONS OF 31 U.S.C. 71A, TO THE BENEFITS OF THE RULE OF THE WHITE CASE. HENCE, UPON THE PRESENTATION OF YOUR CLAIM TO THIS OFFICE AND IN ACCORDANCE WITH THE CONCLUSIVE PROVISIONS OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, YOU WERE FOUND ENTITLED IN THE SETTLEMENT OF AUGUST 10, 1959, TO RECEIVE INCREASED RETIRED PAY FOR THE PERIOD FROM MAY 21 TO SEPTEMBER 30, 1049, INCLUSIVE, COMPUTED AS PRESCRIBED IN SECTION 204, AS AMENDED, ON THE BASIS OF A MULTIPLE FACTOR OF 57 1/2 PERCENT. THUS, THE RECORD SHOWS THAT WITH RESPECT TO THE PERIOD PRECEDING OCTOBER 1, 1949, YOU HAVE RECEIVED IN FULL THE BENEFITS OF SECTION 202 AND SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, IN ACCORDANCE WITH THE DECISION IN THE WHITE CASE.

EFFECTIVE FROM OCTOBER 1, 1949, HOWEVER, YOUR STATUS FOR RETAINER AND RETIRED PAY FALLS SQUARELY WITHIN THE SCOPE OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND SINCE THAT DATE HAS BEEN GOVERNED EXCLUSIVELY BY THOSE STATUTORY PROVISIONS WHICH IN PERTINENT PART PROVIDE AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION * * * MEMBERS HERETOFORE TRANSFERRED TO THE FLEET RESERVE * * * SHALL BE ENTITLED TO RECEIVE * * * RETAINER PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY * * * RETAINER PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY * * * RETAINER PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.

IN THE DECISION OF MARCH 24, 1959, B-138416, TO WHICH SPECIFIC REFERENCE IS MADE IN THE NAVY FINANCE CENTER LETTER OF JULY 14, 1959, IT WAS HELD THAT IN VIEW OF THE EXPLICIT DEFINITION OF THE TERM "ACTIVE SERVICE" AS SET FORTH IN SECTION 511, FOR THE PURPOSES OF THAT SECTION "* * * THE CONCLUSION IS REQUIRED THAT PERIODS OF CONSTRUCTIVE SERVICE RESULTING FROM MINORITY OR SHORT-TERM ENLISTMENTS AS AUTHORIZED BY SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, FOR PURPOSES OF THAT SECTION (OR BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, FOR THE PURPOSES OF THAT ACT), PROPERLY MAY NOT BE CONSIDERED AS CONSTITUTING CREDITABLE ACTIVE SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR TO BE USED IN THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511.' THAT CONCLUSION RESTS ON THE FACT THAT SUCH "CONSTRUCTIVE SERVICE" IS FICTITIOUS, REPRESENTS A PERIOD DURING WHICH THE INDIVIDUAL CONCERNED WAS NOT IN THE NAVAL SERVICE AND IS CREDITABLE FOR CERTAIN SPECIFIED PURPOSES SOLELY AS THE RESULT OF SOME SPECIFIC STATUTORY PROVISION. HENCE, THE PERIOD OF YOUR "CONSTRUCTIVE SERVICE" RESULTING FROM YOUR MINORITY AND SHORT-TERM ENLISTMENTS MAY NOT BE INCLUDED IN DETERMINING THE NUMBER OF YEARS OF ",ACTIVE SERVICE" CREDITABLE IN ESTABLISHING THE PERCENTAGE MULTIPLE FACTOR TO BE USED IN COMPUTING YOUR RETAINER AND RETIRED PAY UNDER METHOD (B) OF SECTION 511. HOWEVER, THE DECISION OF MARCH 24, 1959, DID NOT RESOLVE THE QUESTION WHETHER ABSENCE DUE TO " SKMC"--- DENOTING SICK MISCONDUCT--- IS CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR IN METHOD (B) OF SECTION 511.

THE ACT OF AUGUST 29, 1916 AS AMENDED, 34 U.S.C. 183, 1946 USED., WAS IN EFFECT DURING THE PERIOD OF YOUR NAVAL SERVICE AND PROVIDED THAT:

AN ENLISTMENT IN THE NAVY OR MARINE CORPS SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT.

YOU WERE ABSENT " SKMC" TWO MONTHS AND ONE DAY DURING YOUR MINORITY ENLISTMENT AND 26 DAYS IN YOUR ENLISTMENT OF SEPTEMBER 3, 1932, A TOTAL OF TWO MONTHS AND 27 DAYS. THE PROVISIONS OF 1916 " SKMC" STATUTE HAVE BEEN HELD TO APPLY TO MINORITY ENLISTMENTS NOTWITHSTANDING THAT THE MEMBER CONCERNED IN SUCH A CASE COULD LEGALLY HAVE DEMANDED HIS IMMEDIATE DISCHARGE FROM THE NAVAL SERVICE UPON REACHING HIS MAJORITY. SEE 7 COMP. GEN. 91, 94.

IN 22 COMP. GEN. 759, IT WAS POINTED OUT (AT PAGE 761), THAT:

THE QUESTIONS AS TO WHETHER AN ENLISTED MAN IS ENTITLED TO COUNT FOR PAY PURPOSES THE TIME LOST WHILE HE WAS ABSENT BY REASON OF SICKNESS DUE TO HIS OWN MISCONDUCT, ABSENT WITHOUT LEAVE, ETC., HAVE BEEN EXHAUSTIVELY CONSIDERED AND IT HAS BEEN UNIFORMLY HELD THAT SUCH PERIODS MAY NOT BE CONSIDERED AS ENLISTED SERVICE FOR PAY PURPOSES. SEE 2 COMP. GEN. 162; 4 ID. 336; 15 ID. 836; 20 ID. 218; B-8491, MARCH 3, 1940. CF. UNITED STATES V. LANDERS, 92 U.S. 77.

IT WAS FURTHER STATED THAT:

LONGEVITY PAY GENERALLY HAS BEEN CONSIDERED AS AN INCREASE GRANTED FOR HONEST AND FAITHFUL SERVICE ON THE BASIS THAT THE SERVICEMAN BY HONEST AND FAITHFUL PERFORMANCE OF HIS DUTIES HAS FITTED HIMSELF BETTER FOR THE PERFORMANCE THEREOF AND HAS MADE HIMSELF MORE VALUABLE TO THE GOVERNMENT. WHILE THE PRESENT STATUTE (SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, PROVIDING IN PERTINENT PART FOR CREDIT FOR "ALL PERIODS DURING WHICH THEY WERE ENLISTED") DOES NOT RESTRICT THE SERVICE WHICH MAY BE COUNTED TO ACTIVE SERVICE BUT PERMITS THE INCLUSION OF PERIODS IN AN INACTIVE STATUS AS A RESERVIST, OR OTHERWISE, WHEN THE MAN WAS SUBJECT TO CALL FOR ACTIVE DUTY AND PRESUMABLY HELD HIMSELF IN READINESS TO SERVE, IT WOULD BE CONTRARY TO THE WHOLE SPIRIT AND PURPOSE OF SUCH PROVISIONS WERE HE TO RECEIVE THE BENEFITS THEREOF BY COUNTING PERIODS WHEN HE WAS NOT READY TO SERVE BECAUSE HE HAD DELIBERATELY ABSENTED HIMSELF FROM DUTY WITHOUT AUTHORITY OR BECAUSE HE WAS PHYSICALLY UNABLE TO PERFORM HIS DUTIES BY REASON OF HIS OWN MISCONDUCT. IN THE ABSENCE OF EXPRESS LANGUAGE CLEARLY AUTHORIZING THE INCLUSION OF PERIODS OF THAT CHARACTER, SUCH AN INTENTION MAY NOT BE IMPUTED TO THE CONGRESS. MOREOVER, IN VIEW OF THE LONG PERIOD OF TIME DURING WHICH THE RULE STATED ABOVE HAS BEEN IN EFFECT WITH REGARD TO ENLISTED MEN, IT MUST BE CONSIDERED THAT CONGRESS WAS COGNIZANT THEREOF, AND, IN ENACTING THE PROVISIONS CONTAINED IN SECTION 3 OF THE ACT OF DECEMBER 2, 1942, WITHOUT EXPRESSLY PROVIDING THAT SUCH SERVICE SHOULD BE COUNTED, INTENDED THAT THE ESTABLISHED RULE IN THAT RESPECT WOULD STILL APPLY.

SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233 (A), PRESCRIBES THE MILITARY AND NAVAL SERVICE CREDITABLE IN THE COMPUTATION OF THE BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, WHICH, IN CLAUSE (2), INCLUDES "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED, ETC.' APPLYING THE RULE STATED IN 22 COMP. GEN. 759, THE PERIODS THAT YOU WERE ABSENT DUE TO " SKMC" DO NOT CONSTITUTE SERVICE CREDITABLE UNDER SECTION 202 (A) OF THE 1949 LAW IN THE COMPUTATION OF YOUR BASIC PAY. COMPARE 25 COMP. GEN. 415, 38 COMP. GEN. 352. UNDER METHOD (B) IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, YOU ARE ENTITLED TO RECEIVE RETAINER AND RETIRED PAY EQUAL TO TWO AND ONE-HALF PERCENTUM OF THE MONTHLY BASIC PAY WHICH YOU WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY MULTIPLIED BY THE NUMBER OF YEARS OF ,ACTIVE SERVICE" CREDITABLE TO YOU. THE TERM "ACTIVE SERVICE," INSOFAR AS PERTINENT TO THE PERCENTAGE MULTIPLE FACTOR PRESCRIBED IN METHOD (B) OF SECTION 511, IS DEFINED AS MEANING " * * * ALL SERVICE AS A MEMBER * * * OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY

IT IS OUR VIEW THAT THE RULE ABOVE QUOTED FROM THE DECISION 22 COMP. GEN. 759 IS FOR APPLICATION IN THE COMPUTATION OF YOUR RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF SECTION 511 AND, HENCE, IT IS CONCLUDED THAT THE PERIODS YOU WERE ABSENT DUE TO " SKMC" DO NOT CONSTITUTE CREDITABLE SERVICE "WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY" WITHIN THE SCOPE AND PURVIEW OF THAT SECTION. THEREFORE, THE COMPUTATION OF YOUR RETAINER AND RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THE 1949 LAW, EFFECTIVE FROM OCTOBER 1, 1949, ON THE BASIS OF A MULTIPLE FACTOR IN EXCESS OF 52 1/2 PERCENT (21 YEARS, 7 MONTHS AND 25 DAYS LESS 2 MONTHS AND 27 DAYS " SKMC" OR 21 YEARS, 4 MONTHS AND 28 DAYS AS 21 YEARS TIMES TWO AND ONE-HALF PERCENT) WAS INCORRECT, AND THE ACTION TAKEN IN THE SETTLEMENT OF AUGUST 10, 1959, MUST BE SUSTAINED.